State Records Appeal Hearing 2010-01

By this appeal, Petitioner, Mark Haik, seeks copies of records allegedly held by the Town of Alta (“Alta”).

FACTS

On or about September 14, 2009, Mr. Haik submitted a request to Alta for eleven records pursuant to the Government Records Access and Management Act (“GRAMA”). Katherine Black, records manager for Alta, responded to Mr. Haik’s records request in a letter dated October 14, 2009. Ms. Black granted the majority of Mr. Haik’s requests, but denied Request # 4 for a “Memo Re-Appointment of Lee Kapaloski to Town of Alta Board of Adjustment and his continuing service on the Town of Alta Planning Commission dated 1/09/2003,” stating that the record was a privileged attorney-client communication between Alta’s attorney to Alta’s Mayor and Town Council. Concerning Mr. Haik’s Request #11, Ms. Black stated that the document titled “Town of Alta Utah Analysis of C Road Fund Monies GL#10.12.640 PTIF #2054 June 30, 1997” could not be located following a diligent search.

In a letter dated November 2, 2009, Mr. Haik filed an appeal to Alta Mayor Tom Pollard. In his letter, Mr. Haik claimed that the record in Request # 4 had been incorrectly withheld from production and that Alta should still produce the record pursuant to Request #11. Mr. Haik also claimed that Alta failed to fully produce documents responsive to Requests #3 and #7 based upon a privilege log from a previous judicial proceeding showing that the records consisted of seven and twenty-seven pages respectively, instead of the two single page documents he had already received.

On November 10, 2009, Mayor Pollard denied Mr. Haik’s appeal, finding that Request # 4 should still be denied based upon the record being a protected attorney-client communication. Mayor Pollard further found that Alta had already produced all documents within Alta’s possession responsive to Request #’s 3, 7, & 11. Mr. Haik now appeals to the Utah State Records Committee (“Committee”). The Committee having reviewed the arguments submitted by the parties and having heard oral argument and testimony on January 14, 2010, now issues the following Decision and Order.

STATEMENT OF REASONS FOR DECISION

1. GRAMA specifies that “all records are public unless otherwise expressly provided by statute.” Utah Code Ann. § 63G-2-201(2). Records that are not public are designated as either “private,” “protected,” or “controlled.” See Utah Code Ann. §§ 63G-2-302, -303, -304 and –305.

2. A person making a request for a record shall furnish the governmental entity with a written request containing a description of the record requested that identifies the record with reasonable specificity. Utah Code Ann. § 63G-2-204(1)(b). As soon as reasonably possible, the governmental entity shall respond to the request by: (1) Approving the request and providing the record; (2) Denying the request; (3) Notifying the requester that it does not maintain the record and provide if known, the name and address of the governmental entity that does maintain the record; or (4) Notifying the requester that because of extraordinary circumstances, it cannot immediately approve or deny the request. Utah Code Ann. § 63G-2-204(3)(a).

3. Concerning Requests #3 & #7, Alta asserted during the hearing that all documents responsive to Mr. Haik’s requests had been produced. Alta claimed that a diligent search for the requested records had been conducted and no additional records were found that met the criteria of the requests. Alta also claimed that it did not have a copy of the record responsive to request #11and therefore, could not provide Mr. Haik a record it did not possess.

4. Mr. Haik disagreed with Alta’s claims and contended that Alta still possessed records responsive to Request #’s 3, 7, & 11. Haik claimed that the “Tolton Privilege Log” drafted by Orange Legal Technologies in conjunction with a previous judicial proceeding, showed that Request #3 should have consisted of 7 pages, Request #7 should have consisted of 27 pages, and that the document in Request #11 existed and should be within the possession of Alta. Alta stated that it did not create the “Tolton Privilege Log,” nor did it have any editorial control over the log, and therefore, could not explain the discrepancies between the log and the records found in their possession.

5. After reviewing Mr. Haik’s written GRAMA requests and hearing the arguments and testimony of the parties, the Committee finds that Alta provided records responsive to Mr. Haik’s Requests #3 and #7, and after a diligent search, Alta was unable to find the record responsive to Mr. Haik’s Request #11. Based upon the evidence presented, the Committee simply is not persuaded that Alta possesses additional documents and/or has purposely withheld documents from Mr. Haik. Accordingly, the Committee cannot order Alta to produce documents it does not possess. Utah Code Ann. § 63G-2-403(12).

6. Concerning Request #4, records of communications between a governmental entity and an attorney representing, retained, or employed by the governmental entity are protected if they are properly classified by the governmental entity and if the communications would be privileged pursuant to Utah Code Ann. § 78B-1-137. Utah Code Ann. § 63G-2-305(18). The mere existence of an attorney-client relationship does not ipso facto make all communications between them confidential. S. Utah Wilderness Alliance v. Automated Geographic Reference Ctr., 2008 UT 88, 200 P.3d 643, ¶33, following Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 911 (Utah 1990). In order to rely upon the attorney-client privilege contained in Utah Code Ann. § 63G-2-305(18), the governmental entity must establish: (1) an attorney-client relationship, (2) the transfer of confidential information, and (3) the purpose of the transfer was to obtain legal advice S. Utah Wilderness Alliance, at ¶33.

7. Alta argued that the document responsive to Mr. Haik’s Request #4 was a protected attorney-client communication between Alta’s Attorney and Mayor Pollard and the Alta Town Council. After hearing testimony and reviewing the disputed record in camera, the Committee finds the record was properly classified pursuant to Utah Code Ann. § 63G-2-305(18) because an attorney-client relationship existed, confidential information was transferred, and the purpose of the transfer was for Alta to obtain legal advice.

ORDER

THEREFORE, IT IS ORDERED THAT: the appeal of Petitioner, Mark Haik, is denied because: (1) The Town of Alta has already provided all records in its possession responsive to Mr. Haik’s Request #’s 3, 7, &11, and (2) Alta properly classified Request #4 as a protected record pursuant to Utah Code Ann. § 63G-2-305(18).

RIGHT TO APPEAL

Either party may appeal this Decision and Order to the District Court. The petition for review must be filed no later than thirty (30) days after the date of this order. The petition for judicial review must be a complaint. The complaint and the appeals process are governed by the Utah Rules of Civil Procedure and Utah Code Ann. § 63G-2-404. The court is required to make its decision de novo. In order to protect its rights on appeal, a party may wish to seek advice from an attorney.

PENALTY NOTICE

Pursuant to Utah Code Ann. § 63G-2-403(14)(d), the governmental entity herein shall comply with the order of the Committee and, if records are ordered to be produced, file: (1) a notice of compliance with the Committee upon production of the records; or (2) a notice of intent to appeal. If the governmental entity fails to file a notice of compliance or a notice of intent to appeal, the Committee may do either or both of the following: (1) Impose a civil penalty of up to $500 for each day of continuing noncompliance; or (2) Send written notice of the entity's noncompliance to the Governor for executive branch entities, to the Legislative Management Committee for legislative branch entities, and to the Judicial Council for judicial branch agencies’ entities.